Nixon v. Liberty Mutual Insurance

16 A.D.2d 863 | N.Y. App. Div. | 1962

Judgment and order affirmed, with costs. All concur, except Henry, J., who dissents and votes to reverse and dismiss the complaint, in the following memorandum: I dissent and vote to reverse the order and judgment and to dismiss the complaint. Respondents recovered judgment in the City Court of Buffalo under the provisions of a policy insurance against loss sustained from “ collapse of Building or any part thereof ”. I find no evidence of collapse of the insured building. Snow which had accumulated on the roof slid therefrom and descended about seven'feet onto a sun deck which constituted the roof of the carport. It caused a loud cracking, groaning noise and then quite a loud crack. The house seemed to shake. It caused cracks in the ceiling of the carport and in the plastered walls of some of the rooms in the house. There was a hump in the floor. The building remained intact and plaintiffs continued to reside in it. There was no loss of connection, fracture or falling in of any part of it. Collapse is “ a falling in, and total or near total destruction.” (Weiss v. Home Ins. Co., 9 A D 2d 598, 599.) Neither the oral testimony nor the photographic exhibits demonstrate any collapse of the insured structure. (Appeal from judgment and order of Erie Special Term affirming a judgment of Buffalo City Court for plaintiff. The order dismissed the appeal to County Court and affirmed the City Court judgment, in an action under a home owner’s insurance policy.) Present — Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ.